New Jersey lawyer focusing on special education law and employment law


NJ Anti-Bullying Law Still Alive

The viability of the New Jersey Anti-Bullying Bill of Rights Act, which I have discussed in  previous posts (here and there), seemed to be in question after the Council on Local Mandates in New Jersey struck it down as an unfunded mandate. Had the New Jersey Legislature not responded in time, the NJ Anti-Bullying Law would have expired on March 27, 2012.

Most people have never heard of the Council of Local Mandates. This is not surprising, since the Council was created in 1995, which is quite recent.  Another reason why most people have never heard of the Council is because the Council’s powers are very limited and can only be exercised in limited circumstances.

In essence, the Council has the “exclusive constitutional authority” to  strike down a law, rule, or regulation that “imposes an unconstitutional ‘unfunded mandate’ on boards of education, counties, or municipalities.”

On January 27, 2012, the Council of Local Mandates struck down parts of the New Jersey Anti-Bullying Law because it is an “unfunded mandate.”

Photograph of "Bullying" text cloud.

What is an “unfunded mandate”? In simple terms: When a local government entity is required to comply with or implement a statute, rule, or regulation, but there is no money (other than local property taxes) to enable the entity to comply with the law, it is an “unfunded mandate.”

Unfunded mandates are unconstitutional under the New Jersey Constitution,  Art. VIII, § 2, ¶ 5. When the New Jersey Legislature enacts a new law, it must appropriate funds to local government entities so that these entities can comply with the law.

When the New Jersey Legislature enacted the Anti-Bullying Bill of Rights Act, the Legislature created a special fund called the “Bullying Prevention Fund.” The money in this Fund would be used to offer grants to school districts to  comply with the NJ Anti-Bullying Law, such as training personnel and hiring more staff if necessary.

But there was apparently no money in the Fund.

So, on September 2011, the Allamuchy Township Board of Education filed a complaint, alleging that no funds had been appropriated for the Bullying Prevention Fund in order for school districts to comply with the NJ Anti-Bullying Law. Therefore, the NJ Anti-Bullying Law was an unfunded mandate. See In re Complaint filed by the Allamuchy Township Board of Education.

The State of New Jersey answered the complaint, requesting that the complaint be dismissed. Allumuchy Township moved for summary judgment. Then, the State of New Jersey cross-motioned for summary judgment.

Over the next several weeks, numerous papers were filed by several special interest organizations. The New Jersey State Bar Association, the LGBTQ Cacus of Rutgers School of Law, and the New Jersey Department of Education, all filed amicus curiae briefs in support of the Anti-Bullying Law. Not surprisingly, a number of Board of Educations filed papers in support of Allamuchy’s position to overturn the law.

All of these events (and corresponding documents) are well documented on the Council of Local Mandates’ website.

On January 27, 2012, a hearing was held. On that same day, the Council determined that the New Jersey Anti-Bullying Law was an unfunded mandate.

By law, the Council is required to issue a written opinion explaining its reasons why the Anti-Bullying Law was an unfunded mandate within sixty (60) days after the hearing.

Interestingly, the Council agreed to hold off issuing its written opinion until the New Jersey legislature was able to implement new changes to the NJ Anti-Bullying Law that would correct the problems raised in this case.

According to the press, the NJ legislature would funnel new money, up to $1,000,000, as well as a task force, to keep the Anti-Bullying Law on the books. The bill is referred to as S1789 in the Senate and A2709 in the Assembly. The language in both bills are identical.

On March 11, 2012, the online version of the Star Ledger ran an article that examined whether the New Jersey Anti-Bullying Law actually worked. Not surprisingly, there were some who said that it helped; and there were those who said that it didn’t help at all. It is definitely worth the read.

On March 15, 2012, the New Jersey Legislature in both houses voted in favor of the new bill that would appropriate $1,000,000 to the Bullying Prevention Fund. The bill passed 35-0 in the Senate and 72-2 in the Assembly.

On March 27, 2012, New Jersey Governor Chris Christie signed the new legislation, effectively “resuscitating” the NJ Anti-Bullying Law.

It is important to note that the Council did not strike down the New Jersey Anti-Bullying Law in its entirety. Rather, it only struck down those portions which required that schools comply with the law’s requirement for training and hiring personnel. The Council did not strike down the definition of intimidation, harassment, and bullying as set forth in the Anti-Bullying Law.

The viability of NJ Anti-Bullying Law was certainly in question when the Council determined that it was an unfunded mandate. But it has been saved–at least for now.

Now, there has been some discussion whether $1,000,000 spread over 600+ school districts is even enough money at all. On its face, it seems that $1 million is a paltry sum. After all, that comes out to approximately $1500 per school district.

But it is important to keep in mind that compliance with the NJ Anti-Bullying Law does not require hiring additional staff. It does not require that school districts pay for anti-bullying programming. The law is flexible in the sense that school district personnel can be creative in developing its own anti-bullying programming. In a previous post, I discussed some approaches to developing effective anti-bullying programs.

It is also important to keep in mind that some organizations provide free training in preventing and addressing bullying. For example, the New Jersey State Bar Foundation provides FREE training to school personnel. As part of this training, free materials will be distributed, including the Bar Foundation’s “Anti-Bullying Curriculum Guide” and “Bully-Busting Curriculum: Six Essential Lessons for Grades K-12.” School districts need to take advantage of these free training sessions. In fact, the new legislation requires that school districts seek free alternatives before applying for funding.

Not to be undone with the NJ Anti-Bullying Law, the NJ Legislature recently introduced two additional bills to fight bullying:

A450. Restricts cyberbullying offenders’ access to the Internet.

A749. Nonpublic schools must also adopt a policy prohibiting harassment, intimidation, or bullying of a student.

It will be interesting to see whether these bills pass, and what impact these bills will have on the fight against bullying.

In the meanwhile, bullying continues to be a hot topic. As part of the anti-bullying curriculum, school districts should take advantage of the current climate and talk about the Dharun Ravi trial and the newly released documentary, “Bully.”

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